George Williams
Law and Bills Digest Group
Contents
Major Issues Summary
Introduction
The History of Truth in Political Advertising
Legislation in Australia
The Queensland Committee's
Findings
Is Truth in Political Advertising Legislation Desirable and
Possible?
The Form and Limits of the Proposed Legislation
The Application of Truth in Political Advertising Legislation
to
How-to-Vote Cards
Comparative Experience with Truth in Political Advertising
Laws
New Zealand
Canada
United States
Conclusion
Endnotes
The potential impact of misleading or false statements made in
the course of electioneering is undoubted. Such campaigning
obviously has an adverse affect upon the public interest. It may
distort election outcomes, divert voter attention from substantive
issues and may even discourage qualified individuals from seeking
election.
The question of whether Australian Parliaments should enact
truth in political advertising laws has been a recurrent theme in
electoral law in recent years. In the 1980s the Commonwealth
Parliament dallied with the idea-first introducing such laws, then
quickly repealing them. There have recently been suggestions that
the Commonwealth Parliament's Joint Standing Committee on Electoral
Matters might again argue for the introduction of such laws at the
federal level. At the State level, South Australia has introduced
truth in political advertising laws, while Queensland is on the
track to doing so.
Momentum for change has been provided by the Legal,
Constitutional and Administrative Review Committee of the
Queensland Parliament, which released its Report on Truth in
Political Advertising in December 1996. After a review process
involving the production of an issues paper, the receipt of public
submissions and the holding of a public hearing, a majority of the
Committee found that it is both possible and desirable to legislate
to prevent candidates from lying or misrepresenting facts during an
election campaign. Many of the Committee's conclusions were based
upon reasoning by analogy with the successful operation of section
52 of the Trade Practices Act 1974 (Cth), which provides
'A corporation shall not, in trade or commerce, engage in conduct
that is misleading or deceptive or is likely to mislead or
deceive'. The Committee recommended that legislation be introduced
into Queensland to regulate the use of inaccurate and misleading
statements in election advertising. A minority of the Committee,
while supporting the principle of truth in political advertising,
argued that such legislation was inappropriate as it would be
unworkable.
A review of the laws in place in the United States shows that
various State legislatures have attempted to enact truth in
political advertising laws or similar provisions. However, this has
been made difficult and may be frustrated by the guarantee of free
speech in the First Amendment to the United States Constitution.
This guarantee and its interpretation by the United States Supreme
Court casts doubt on the constitutional validity of truth in
political advertising provisions in that country.
Australia also faces constitutional problems with seeking to
regulate truth in political advertising given the High Court's
recognition that the Australian Constitution contains an implied
freedom of political discussion. However, it would seem likely that
the South Australian provision, which survived constitutional
scrutiny in the South Australian Supreme Court in Cameron v
Becker, as well as the provision suggested by the Queensland
Committee, are effective and valid models by which truth in
political advertising might be regulated.
The notion that the law should provide for truth in political
advertising is misleading. Any such law would be unworkable. Who is
to say what is the 'truth'? How could such a law be enforced?
Instead, when the argument is put for truth in political
advertising legislation, it is really being suggested that the law
should penalise electoral statements that can be shown to be false
or misleading. No law could require that such statements actually
be 'true'.
The question of whether Australian Parliaments should enact
truth in political advertising laws has been a recurrent theme in
electoral law in recent years. In the 1980s the Commonwealth
Parliament dallied with the idea-first introducing such laws, then
quickly repealing them. There have recently been suggestions that
the Commonwealth Parliament's Joint Standing Committee on Electoral
Matters might again argue for the introduction of such laws at the
federal level.(1) At the State level, South Australia has
introduced truth in political advertising laws, while Queensland is
on the track to doing so.
Momentum for change has been provided by the Legal,
Constitutional and Administrative Review Committee of the
Queensland Parliament, which released its Report on Truth in
Political Advertising in December 1996.(2) After a review
process involving the production of an issues paper, the receipt of
public submissions and the holding of a public hearing, a majority
of the Committee found that it is both possible and desirable to
legislate to prevent candidates from lying or misrepresenting facts
during an election campaign. The Committee recommended that
legislation be introduced into Queensland to regulate the use of
inaccurate and misleading statements in election advertising. A
minority of the Committee, while supporting the principle of truth
in political advertising, argued that such legislation was
inappropriate as it would be unworkable.
It was not until the passing of the Commonwealth Electoral
Legislation Amendment Act 1983 (Cth) that the first provision
prohibiting untrue advertising was enacted.(3) The new section
116(2) [subsequently section 329(2)] of the Commonwealth
Electoral Act 1918 (Cth) stated:
A person shall not, during the relevant period in relation to an
election under this Act, print, publish, or distribute, or cause,
permit or authorise to be printed, published or distributed, any
electoral advertisement containing a statement:
- that is untrue; and
- that is, or is likely to be, misleading or deceptive.
Section 116(6) provided that it was a defence if the person was
able to prove that he or she 'did not know, and could not
reasonably be expected to have known' that the electoral
advertisement contained an offending statement. A person convicted
of an offence under the provision was liable to a fine not
exceeding $1 000 or imprisonment of up to 6 months or both, while a
corporation would be liable to a fine of up to $5 000.
Section 329(2) was repealed in 1984 upon the recommendation of
the Commonwealth Parliament's Joint Select Committee on Electoral
Reform.(4) A majority of the Committee expressed the following
criticisms of the section:
- While fair political advertising is a legitimate objective, it
is not one properly to be sought through legislation.(5) Political
advertising involves 'intangibles, ideas, policies and images'(6)
which cannot be subjected to a test of truth, truth itself being
inherently difficult to define.(7)
- As evidence was given that even predictions and opinions may
imply statements as to present fact, and thus be subject to the
section, the section was considered to be so broad as to be
unworkable.(8)
- The section would have a disproportionate impact on publishers,
who would need to seek legal advice before publishing. This would
inhibit political advertising and thus limit the information
received by the public.(9)
- The Committee expressed concern that injunctions might be
misused to disrupt the campaigns of other parties and candidates.
In the context of an election campaign the grant of an interim
injunction could have the same effect as a final order.(10)
Consequently, the final recommendation of the Committee was as
follows:
the Committee concludes that even though fair advertising is
desirable it is not possible to control political advertising by
legislation. As a result, the Committee concludes that s 329(2)
[161(2)] should be repealed. In its present broad scope the section
is unworkable and any amendments to it would be either ineffective,
or would reduce its scope to such an extent that it would not
prevent dishonest advertising. The safest course, which the
committee recommends, is to repeal the section effectively leaving
the decision as to whether political advertising is true or false
to the electors and to the law of defamation.
A similar view was repeated in 1994 by the Joint Standing
Committee on Electoral Matters in its Report of Inquiry into
the Conduct of the 1993 Federal Election and Matters Related
Thereto.(11)
There have been several unsuccessful attempts to reinsert
section 329(2) or a like provision into the Commonwealth
Electoral Act since its repeal in 1984.(12) In 1995, attempts
were made to introduce provisions similar to the old section 329(2)
into Commonwealth(13) and Queensland(14) law. In Queensland the
move had the support of the Electoral and Administrative Review
Commission's recommendations in 1991(15) and 1992(16) that controls
over political advertising be imposed. However political events in
1996 saw both the Commonwealth and Queensland Bills lapse.
Today, only South Australia has truth in political advertising
legislation in force. Section 113(1) of the Electoral Act
1985 (SA) is in quite different terms to the old section 329(2) in
its focus upon misstatements of fact. Section 113(1) reads:
Where-
- an electoral advertisement contains a statement purporting to
be a statement of fact; and
- the statement is inaccurate and misleading to a material
extent, a person who authorised, caused or permitted the
publication of the advertisement shall be guilty of an
offence.(17)
It is a defence for the person to prove that he or she 'took no
part in determining the contents of the advertisement' and that he
or she 'could not reasonably be expected to have known that the
statement to which the charge relates was inaccurate and
misleading'. Section 113(1) has supported a successful prosecution
and survived a challenge to its constitutional validity in
Cameron v Becker.(18)
While section 113(1) of the South Australian Electoral
Act is the only provision currently in force that might be
called a truth in political advertising provision, there are laws
in each other Australian jurisdiction that make it an offence to
mislead an elector in relation to the casting of his or her vote.
Such laws are phrased slightly differently in the various
jurisdictions, but all refer to statements in electoral matter. For
example:
- Section 151A(1)(b) of the Parliamentary Electorates and
Elections Act 1912 (NSW) makes it an offence for a person to
'print, publish or distribute any "how-to-vote" card, electoral ad,
notice, handbill, pamphlet or card containing any untrue or
incorrect statement intended or likely to mislead or improperly
interfere with any elector in or in relation to the casting of his
vote'.
- Section 209(1) of the Electoral Act 1985 (Tas)
prohibits statements 'intended or likely to mislead or improperly
interfere with an elector in or in relation to the recording of his
vote'. Section 163(1) of the Electoral Act 1992 (Qld) is
in similar terms except that it is expressed as 'intended or likely
to mislead an elector in relation to the way of voting at the
election'.
- Section 267B(1) of the Constitution Act Amendment Act
1958 (Vic) reads: 'A person shall not, during the relevant period
in relation to an election under this Act, print, publish or
distribute, or cause, permit or authorise to be printed, published
or distributed, any matter or thing that is likely to mislead or
deceive an elector in relation to the casting of the vote of the
elector'. Sections 191A(1) of the Electoral Act 1907 (WA)
and 329(1) of the Commonwealth Electoral Act 1918 (Cth)
are in like terms.
- Section 106© and (d) of the Electoral Act 1993
(NT) prohibits statements 'intended to or likely to mislead or
improperly interfere with an elector in or in relation to the
casting of his vote'.
- Section 297(1) of the Electoral Act 1992 (ACT) reads:
'A person shall not disseminate, or authorise to be disseminated,
electoral matter that is likely to mislead or deceive an elector
about the casting of a vote'.
In Evans v Crichton-Browne(19) the High Court held that
the words 'in or in relation to the casting of his vote' in section
161(e) of the Commonwealth Electoral Act were limited to
'the act of recording or expressing the political judgment which
the elector has made rather than to the formation of that
judgment'.(20) This may mean that each of the above provisions can
only have a minimal impact on preventing false and misleading
statements of fact during election campaigns. If interpreted in the
same way as section 161(e), they would only relate to statements
that affect the actual physical casting of a person's vote and not
to statements that affect the formation of a political judgment by
the elector.
Is Truth in Political Advertising Legislation Desirable and
Possible?
In its December 1996 Report(21) the Legal, Constitutional and
Administrative Review Committee of the Queensland Parliament sought
to address many of the concerns posed by the 1984 Report of the
Joint Select Committee on Electoral Reform by reasoning from the
operation of section 52 of the Trade Practices Act 1974
(Cth).(22) Thus, for example, the argument that the electorate is
the most appropriate body to determine the truth or otherwise of
political claims was undermined by the reminder that it was once
also alleged that the market would operate to allow consumers to
ascertain the truth about products. The recognition that the
information required to make appropriate decisions is usually
privileged applies equally to political and commercial advertising.
Similarly, the assertion that political statements 'promote
intangibles, ideas, policies and images'(23) which cannot be
regulated was countered with evidence that section 52 has been
successfully interpreted to regulate vague and complex subject
matter. For example, under section 52 tests based on the state of
mind of the person making the statement exist to assess whether
opinions and predictions are misleading or deceptive, while
statements which are clearly exaggerations have been labelled
'puffs' and are not subject to the law.
The Committee could not, however, completely equate commercial
and political advertising. It recognised a primary difference
between commercial and political advertising: freedom of political
communication is protected by the Constitution,(24) while
commercial advertising is not.(25) Following the analysis of the
South Australian provision by the Full Court of the Supreme Court
of South Australia in Cameron v Becker, the Committee was
confident that legislation preventing misleading and inaccurate
statements of fact in political advertising 'would be an acceptable
and proportional intrusion'(26) on the constitutional freedom. On
the other hand, the Committee stressed that a political candidate
must be free to express his or her opinion irrespective of 'how
misguided or reprehensible the majority believe it to be'.(27)
Thus, provided an opinion or prediction is not specifically
justified by inaccurate or misleading facts, its expression should
not be regulated. The Committee concluded that regulating opinions
or predictions would go beyond a proportional intrusion on the
freedom of political discussion and may be unconstitutional.
Consequently, only regulation as to false and misleading statements
of fact was considered both possible and desirable.
The Form and Limits of the Proposed Legislation(28)
Of all of the models examined by the Queensland Committee-the
former section 329(2), its slight variations in the 1995 Queensland
and Commonwealth Bills, the South Australian provision and section
52 of the Trade Practices Act-it was the South Australian
provision which most closely conformed to the Committee's desired
objectives. That provision is limited to statements of fact and is
thus more objectively determinable, and has already survived a
constitutional challenge. In addition, the Committee found that it
is the most easily administered, an attribute which could not be
overestimated given the difficulties with truth in political
advertising legislation. The Committee thus recommended that a
provision in terms of section 113(1) of the Electoral Act
1985 (SA) be inserted into the Electoral Act 1992
(Qld).
Rather than formulate its own general defence, the Committee
decided that the defences provided in Part 1 Chapter V of
Queensland's Criminal Code, including the defence of
honest and reasonable mistake of fact, were sufficient. One
exception was in relation to the liability of third party
publishers and distributors. The Committee drafted a provision
excluding them from liability if they could establish that they
'took no part in determining the contents of the advertisement or
how-to-vote material' and 'could not reasonably be expected to have
known' that the statement was 'inaccurate and misleading'.
The debate in South Australia on the appropriate remedies for
the breach of truth in political advertising legislation(29) was
also reflected in the Queensland Committee's deliberations. The
1984 Report of the Joint Select Committee on Electoral Reform
recommended against the use of injunctions due to the possibility
that they would be used by candidates to unjustly disrupt the
advertising campaigns of opposing candidates, while obtaining
additional publicity for themselves; an argument which was
considered persuasive in South Australia.(30) Although the
Queensland Committee recognised this, it concluded that injunctions
were still a valuable remedy for limiting the effects of false and
misleading advertising. On the other hand, the Committee stated
that corrective advertising had the potential to disproportionately
affect the outcome of an election. Consequently, this type of
remedy was limited to a judicial declaration of falsity. Overall,
the Committee considered that fines of up to 40 penalty units for
individuals and of up to 200 penalty units for corporations,(31)
declarations of falsity, injunctions, damages and, if the offending
advertisement could be shown to have influenced an election
outcome, a fresh election, provided sufficient protection to
disadvantaged candidates.
The Committee also found that truth in political advertising
legislation in Queensland should not be limited to State elections
but should be extended to cover local elections. In reaching this
conclusion, it noted that the South Australian provision is
substantially repeated in its Local Government Act 1934
(SA) and that the Local Government Act 1993 (Qld)
currently mirrors most of the offence provisions under the
Queensland Electoral Act. The Committee further decided
that it was appropriate to extend truth in political advertising
legislation to the conduct of referendums by amending the
Referendums Bill 1996 (Qld).
The Application of Truth in Political Advertising Legislation
to How-to-Vote Cards
The Queensland Electoral Act imposes few limits on the
handing out of election material, including how-to-vote cards, on
polling day.(32) The Committee concluded that how-to-vote cards do
play an important role in the election process and should be
retained. Indeed, it was suggested that any attempt to ban them or
seriously restrict their availability may infringe the implied
constitutional freedom of political discussion.(33) The Committee
favoured combating problems associated with the use of how-to-vote
cards by extending truth in political advertising provisions to
them. They proposed that a provision in similar terms to the
following be included in any truth in political advertising
legislation enacted in Queensland:
Where-
(a) any how-to-vote material contains a statement purporting to
be a statement of fact and the statement is inaccurate and
misleading to a material extent; or
(b) any how-to-vote material purports or represents to be the
how-to-vote material of another entity and such representation is
misleading or is likely to mislead
a person who authorised, caused or permitted the publication, or
distributed, the how-to-vote material shall be guilty of an
offence.
Comparative Experience with Truth in Political Advertising
Laws
New Zealand
There are no provisions in the Electoral Act 1993 (NZ)
that deal with false and misleading advertising, or making false
statements which may mislead voters in the casting of their votes.
However, under that Act all electoral advertisements must be
authorised.
Canada
In Canada, the relevant statute is the Canada Elections
Act 1990 (Canada). It has various sections relevant to the
issue, but no equivalent provision to section 113(1) of the South
Australian Electoral Act. For example, section 48
establishes an advertising blackout period on polling day and the
previous day; section 261 requires that all advertisements must be
authorised; while section 264 provides that 'every person who,
before or during an election, knowingly makes or publishes any
false statement of fact in relation to the personal character or
conduct of a candidate is guilty of an illegal practice and of an
offence'.
United States
The First Amendment to the United States Constitution provides
that: 'Congress shall make no law … abridging the freedom of
speech'. The United States Supreme Court has given a robust
interpretation to this right. This obviously restricts the scope
for legislatures in the United States to pass truth in advertising
laws, particularly given that the First Amendment has its 'fullest
and most urgent application precisely to the conduct of campaigning
for political office'.(34) For example, the decision of the Supreme
Court in New York Times v Sullivan(35) prevents a person
from recovering for defamatory statements made in campaigning
unless such statements can be shown to have been made with 'actual
malice'.(36) By 'actual malice' the Court meant a statement
published with knowledge of its falsity or with reckless disregard
as to its truth.(37) To take a further example, in Mills v
Alabama(38) the United States Supreme Court found
unconstitutional a ban on election speech on the day of
polling.
Despite the width of the guarantee of free speech in the United
States Constitution, several States prohibit the making of certain
types of false statements, such as those that impact upon the
reputation of a candidate,(39) in political campaigns.(40) However,
such statutes are potentially subject to constitutional
difficulties.(41) One such provision that has been suggested might
not survive constitutional scrutiny is a Massachusetts law that
provides:
No person shall make or publish, or cause to be made or
published, any false statement in relation to any candidate for
nomination or election to public office, which is designed to aid
or to injure or defeat such candidate.(42)
A significant first amendment issue in the United States is the
constitutionality of disclosure statutes, that is, legislative
provisions prohibiting anonymous political advertising and
campaigning. Recently, in McIntyre v Ohio Elections
Commission(43) the Supreme Court struck down an Ohio
disclosure statute as being unconstitutional. Reactions to the
McIntyre Case by United States commentators reflect a
growing concern about the increasing use of deceptive negative
advertising during campaigns and the ineffectiveness of the law in
preventing it.(44) This is grounded in a fear that the current law
fails to protect candidates, and in turn the public, yet any more
severe sanctions would face constitutional difficulties.
In advocating the regulation of truth in political advertising,
the Legal, Constitutional and Administrative Review Committee of
the Queensland Parliament focused on the aspirational impact of
such legislation and rejected 'the logic that says that since we
cannot stop all dishonest intent therefore we will not try to stop
any'.(45) In doing so, and in drafting recommended provisions, the
Committee decided to err on the side of caution. The majority's
main concern was a pragmatic and sensible one: to develop a
standard likely to withstand both political and legal scrutiny.
They did this by developing a model that penalises false and
misleading statements of fact but is ameliorated by a defence of
honest and reasonable mistake of fact. The model put forward by the
Committee is designed to deter blatant examples of such conduct
rather than to place a blanket ban on any speech likely to mislead
or deceive voters in their electoral choices. Free speech in the
electoral process is restricted only so far as is necessary to
achieve this aim.
An important part of the Committee's reasoning relied upon
doctrines and experience underpinning section 52 of the Trade
Practices Act (TPA). The Committee's reliance upon section 52
to support, by analogy, the case for truth in political advertising
legislation in Queensland was perhaps the most important reason why
it reached the opposite conclusion to the 1984 Report of the Joint
Select Committee on Electoral Reform. Another significant reason
for the different approach taken by the Queensland Committee is the
recent rise of allegations of 'dirty tricks' in election
campaigning. One prominent example is 'push polling', which was
allegedly used in the 1995 Queensland State election.(46) The rise
of such practices has perhaps been a factor in what some have seen
as the deepening cynicism of the electorate towards the political
process and highlights the need, tapped into by the Committee, for
ethical standards in electioneering.
Reliance upon section 52 of the TPA by the Queensland Committee
is reflected in the remedies proposed for breaches of a truth in
political advertising provision. Like those available where section
52 is breached,(47) the remedies offer considerable leeway for a
court and include the possibility of both injunctions and damages.
However, the Queensland Committee went beyond the remedies offered
under section 52 in one important respect. While a breach of
section 52 does not give rise to an offence, breaches of the truth
in political advertising legislation could incur significant fines.
This can be justified by the need for an effective deterrent for
the breach of such a provision as well as by the potentially
irreversible consequences of such a breach.
The Queensland Report may be commended for the approach it has
taken. It can be argued that their reasoning and explicit caution
based upon the need to respect the constitutional freedom of
political discussion makes their approach a compelling one. The
Report should contribute to the setting of higher standards of
debate and electoral practice in Queensland. Though any provision
mandating truth in political advertising will be difficult to
enforce, its wider impact upon the political culture should not be
discounted. Such legislation has the potential to have a powerful
impact in shaping political ethics and campaigning practices in
Australia.
- Millett, M. 'Crackdown on Political Liars' Sydney Morning
Herald, 28 January 1997.
- Legal, Constitutional and Administrative Review Committee,
Report on Truth in Political Advertising (December 1996, Report No.
4). The author of this paper made a submission to the Committee and
appeared before it in Brisbane on 30 August 1996.
- Cf Commonwealth Electoral Act 1918 (Cth), section 161(e); Evans
v Crichton-Browne (1981) 147 CLR 169.
- Joint Select Committee on Electoral Reform, Second Report
(August 1984).
- Ibid at para 2.78.
- Ibid at para 2.79.
- Ibid at paras 2.502.54.
- Ibid at paras 2.552.67.
- Ibid at para 2.80.
- Ibid at paras 2.682.77.
- Joint Standing Committee on Electoral Matters, Report of
Inquiry into the Conduct of the 1993 Federal Election and Matters
Related Thereto (November 1994): 109
- Commonwealth Electoral Amendment Bill 1987 (Cth); Commonwealth
Electoral and Referendum Amendment Bill 1989 (Cth); Commonwealth
Electoral (Printing, Publishing and Distribution of Electoral
Matters) Amendment Bill 1990 (Cth); Political Broadcasts and
Political Disclosures Bill 1991 (Cth).
- Electoral and Referendum Amendment Bill 1995 (Cth).
- The Electoral Amendment Bill 1995 (Qld) sought to introduce a
provision similar to the old section 329(2) except that the
requirement was to be that the statement had to be untrue OR
misleading or deceptive.
- Electoral and Administrative Review Commission, Report on the
Review of the Elections Act 19831991 and Related Matters (December
1991), Chapter 11.
- Electoral and Administrative Review Commission, Report on
Investigation of Public Registration of Political Donations, Public
Funding of Election Campaigns and Related Issues (June 1992),
Chapter 5.
- See Electoral (Miscellaneous) Amendment Bill 1996 (SA).
- (1995) 64 SASR 238.
- (1981) 147 CLR 168.
- Ibid at 207208.
- Legal, Constitutional and Administrative Review Committee,
Report on Truth in Political Advertising (December 1996, Report No
4).
- Section 52 provides that 'A corporation shall not, in trade or
commerce, engage in conduct that is misleading or deceptive or is
likely to mislead or deceive'. Although section 52 has a limited
operation within each State according to the ambit of Commonwealth
power, a like provision has been enacted by each State and by the
Australian Capital Territory and the Northern Territory. See, for
example, Fair Trading Act 1987 (NSW), section 42; Fair Trading Act
1989 (Qld), section 38.
- Joint Select Committee on Electoral Reform, , Second Report
(August 1984): p 26.
- See Nationwide News v Wills (1992) 177 CLR 1; Australian
Capital Televisions v Commonwealth (1992) 177 CLR 106; Theophanous
v Herald and Weekly Times Ltd (1994) 182 CLR 211; Stephens v West
Australian Newspapers Ltd (1994) 182 CLR 104. See generally on the
application of the implied freedom of political discussion to
electoral law, G. Williams, The State of Play in the
Constitutionally Implied Freedom of Political Discussion and Bans
on Electoral Canvassing in Australia Research Paper No. 10
19961997, (Commonwealth Parliament, Information Research Services,
11 February 1997).
- The Committee cited Tobacco Institute v AFCO (1993) 113 ALR 257
at 282283 per Hill J. See also Theophanous v Herald and Weekly
Times Ltd (1994) 182 CLR 211 at 124125 per Mason CJ, Toohey and
Gaudron JJ.
- Legal, Constitutional and Administrative Review Committee,
Report on Truth in Political Advertising (December 1996, Report No.
4): 29.
- Ibid at 28.
- For the full text of the provision, see ibid at 54.
- Note that the Electoral (Miscellaneous) Amendment Bill 1996
(SA) attempts to provide for the withdrawal of an offending
advertisement and the publication of a retraction.
- The Queensland Committee reported that the clause permitting
injunctions in the South Australian legislation was removed before
the legislation was passed [Legal, Constitutional and
Administrative Review Committee, Report on Truth in Political
Advertising (December 1996, Report No. 4): 12].
- Under the Penalties and Sentences Act 1992 (Qld), section 5,
each penalty unit would be equivalent to $75.
- Cf Electoral Act 1992 (Qld), section 166.
- For an example of a provision restricting the handing out of
how-to-vote cards that might infringe the constitutional freedom,
see Electoral Act 1992 (ACT), section 303. On this point, see G.
Williams, op.cit.
- Monitor Patriot Co v Roy 401 US 265 at 272 (1971).
- 376 US 254 (1964).
- Ibid at 279280.
- Ibid at 280. Cf the weaker test established in Australian by
the majority in Theophanous v Herald & Weekly Times Ltd (1994)
182 CLR 104.
- 384 US 214 (1966).
- Mississippi Election Code, 2315875 (1990)
- L. Con, 'Mississippi Mudslinging: The Search for Truth in
Political Advertising' (1994) 63 Mississippi Law Journal 507 at
510511.
- See, for example, ibid at 515.
- P.F. May 'State Regulation of Political Broadcast Advertising:
Stemming the Tide of Deceptive Negative Attacks' (1992) 72 Boston
University Law Review 179 at 200201.
- 115 S Ct 1511 (1995).
- T.H. Dupree Jr, 'Exposing the Stealth Candidate: Disclosure
Statutes after McIntyre v Ohio Elections Commission,' (1996) 63
University of Chicago Law Review 1211; M.A. Whitt, 'McIntyre v Ohio
Elections Comm'n: "A Whole New Boutique of Wonderful First
Amendment Litigation Opens its Doors"', (1996) 29 Akron Law Review
423.
- Joint Select Committee on Electoral Reform, Second Report
(August 1984): 47 per Senator Macklin.
- There have also been allegations of 'push polling' in the 1994
Northern Territory election, the 1995 New South Wales State
election and, at the federal level, in the 1995 Canberra
by-election. See Joint Standing Committee on Electoral Matters,
Inquiry into Push PollingSubmissions; G. Williams, Push Polling in
Australia: Options for Regulation (Research Note No. 36 199697)
Commonwealth Parliament Information and Research Services, 4 march
1997 .
- Trade Practices Act, Pt VI.